Austin “Jack” DeCoster and his son Peter sell a lot of eggs. They own 13 facilities comprised of 97 barns housing 5 million “layers” (egg-laying hens) and abundant “pullets” (younger nonlayers) across a total of 3 million square feet, with additional square footage for cleaning, packaging, and storing.
Sometime between January and August 2010, according to the Food and Drug Administration, some eggs at the DeCosters’ Quality Egg operation became adulterated with salmonella. Although the DeCosters didn’t know that, proof of “adulteration” is all the text of the relevant federal criminal statute requires for conviction.
So their ignorance was no excuse.
Facing three-month prison sentences, Jack and Peter DeCoster challenged their punishment in the 8th U.S. Circuit Court of Appeals as a violation of the due process clause of the Fifth Amendment as well as the Eighth Amendment prohibition against cruel and unusual punishments. They lost.
Laying a Mine Field of Liability
Intent to commit a crime was a prerequisite of any criminal conviction until the Industrial Revolution generated sophisticated businesses such as the DeCoster operation and with them, sophisticated new injuries to workers, consumers, and communities.
In the late 19th century, lawmakers began to create new laws to hold corporate executives criminally liable for those harms, even if they were caused by other people’s conduct, and even if the executives were unaware of that conduct. Those laws, as the Supreme Court wrote in Morissette v. United States (1952), “disregard any ingredient of intent.”
In United States v. Dotterweich (1943), the Supreme Court upheld the criminal convictions of corporative executives under the Food, Drug, and Cosmetic Act based on a theory of “vicarious liability”—that is, holding one person responsible for the conduct of another based on the nature of their relationship.
In that 1943 case, the defendants’ sentences did not include imprisonment. Even so, Justice Frank Murphy wrote a vigorous dissent, arguing that imposing liability for “an act in which the accused did not participate and of which he had no personal knowledge” is “inconsistent with established canons of criminal law.”
The Supreme Court still maintains that “the existence of a [criminal intent standard] is the rule of, rather than the exception to, the principles of Anglo-American criminal jurisprudence,” even where the legislature omits a criminal intent requirement, as it did in the adulteration statute in the DeCosters’ case.
No Intention Behind Bad Eggs
The majority opinion in the DeCoster case, written by Judge Diana Murphy, paints a pretty dirty picture of Quality Egg, noting that authorities found “live and dead rodents and frogs” in some buildings as well as “holes in the walls.” And “in one building near the laying hens, manure was found piled to the rafters.”
Jack and Peter DeCoster had tested their chickens for salmonella, however, since 2004, five years before the Food and Drug Administration released the 2009 egg-safety rule, described as “the first and only federal rule that addresses the introduction of [salmonella] into the egg during production.”
The DeCosters also hired personnel to comply with health and safety regulations, including two poultry disease specialists in 2009 to conduct environmental salmonella tests.
They cleaned barns, administered additional vaccines, switched animal feed, increased salmonella tests, and tested individual eggs for salmonella “consistent with the sampling protocol” of the egg-safety rule. They claimed that “none of the sampled eggs tested positive” for salmonella.
Targeting ‘Responsible Corporate Officers’
Four months before the egg-safety rule took effect in July 2010, FDA Commissioner Margaret Hamburg decided to increase prosecutions “to hold responsible corporate officers accountable.” Soon after, the agency discovered salmonella in the DeCosters’ eggs at higher than average rates, notwithstanding their compliance efforts. Faced with adulteration charges, the two men waived their right to a jury trial.
As Judge Clarence Beam noted in his dissent, the government conceded that the DeCosters “did not know that any eggs distributed by Quality Egg at any relevant times ‘were, in fact, contaminated with salmonella.’” And that “no person associated with Quality Egg had knowledge of salmonella contamination at any relevant time.”
Beam expressed the view that, under these circumstances, the imposition of a prison sentence violated due process.
The majority disagreed, writing:
Here, as owner of Quality Egg, Jack [DeCoster] decided which barns were subject to salmonella environmental testing, and as chief operating officer, Peter [DeCoster] coordinated many of the company’s salmonella prevention and rodent control efforts. Neither of the DeCosters claim to have been ‘powerless’ to prevent Quality Egg from violating the FDCA [Food, Drug, and Cosmetic Act].
Despite their familiarity with the conditions in the Iowa facilities, they failed to take sufficient measures to improve them. On this record, the district court reasonably found that “the defendants ‘knew or should have known’ of the risks posed by the unsanitary conditions at Quality Egg in Iowa, ‘knew or should have known’ that additional testing needed to be performed before the suspected shell eggs were distributed to consumers, and ‘knew or should have known’ of proper remedial and preventative measures to reduce the presence of [salmonella].”
The Food, Drug, and Cosmetic Act law “punishes neglect where the law requires care,” the majority wrote. “We conclude that the record here shows that the DeCosters are liable for negligently failing to prevent the salmonella outbreak.”
Costs of a Doctrine
The use of a negligence standard is becoming more prevalent in criminal statutes, lawyers for the Washington Legal Foundation argued, in part because it does not require prosecutors to prove the “bad intent” element of the traditional “bad act + bad intent = crime” equation of criminal law.
But that trend carries with it grave costs. Sending executives to prison for someone else’s violation of a federal criminal law or regulation—which number over 4,500 and 300,000, respectively—puts corporations, their executives, and their shareholders at risk.
Increased risk of prison could require more lucrative incentives for executives to go to work. It could deter executives’ voluntary compliance with their industry regulators, and incentivize them to hide rather than report any mishaps or latent product defects out of fear of going to prison. These costs and more fall directly on consumers.
These costs come with serious legal concerns. At least one other federal court of appeals has ruled that the Constitution “prohibits the state from imprisoning a person without some proof of personal blameworthiness.”
The Supreme Court recently revitalized the presumption that criminal conviction requires proof of criminal intent. FBI Director James Comey, speaking regarding the Hillary Clinton investigation, reiterated to the House Oversight and Government Reform Committee: “We don’t want to put people in jail unless we can prove they knew they were doing something they shouldn’t do.”
The DeCoster case and others like it repudiate our nation’s common law tradition in favor of a finding that someone knowingly did wrong—what is known as the mens rea requirement. As famed legal scholar Joel Prentiss Bishop noted in his “Commentaries on the Criminal Law”:
There is only one criterion by which the guilt of men is to be tested. It is whether the mind is criminal. Criminal law relates only to crime, and neither in philosophical speculation, nor in religious or moral sentiment, would any people in any age allow, that a man should be deemed guilty unless his mind were so. It is, therefore, a principle of our legal system, as probably every other, that the essence of an offense is the wrongful intent, without which it cannot exist.